June 28, 2012

SCOTUS SCROTUS: Don't Call It A Penalty!

If there's anything that might cause me to rise from my moldy grave to grace the fair internet with my deep insights it's surely the end of a Supreme Court term.

First, because it's my blog and you're all assholes, let's talk about the "Stolen Valor" case. The Stolen Valor Act made it a crime to falsely claim to have earned certain military honors. The Court ruled, 6-3, that the law violates the First Amendment. This seems an obvious result, so it's not worth a ton of any of our time, but I'm slightly troubled by the vote breakdown. Justice Kennedy, invoking Orwell and getting rather apocalyptic about everything, wrote a plurality opinion joined by the Chief Justice and Justices Ginsburg and Sotomayor. Justices Breyer and Kagan concurred with the result but suggest that a more narrowly devised statute might survive. Their reasoning (that the law is merely overbroad and not inherently in violation of the First Amendment) strikes me as flawed and dangerous, insofar as it leaves open the door for just such a narrower law to be passed. Telling someone a lie for the purpose of gaining some material benefit is already criminal, regardless of the lie, so this suggests that the "narrower" law would still apply in certain cases in which someone lies for no material benefit. That's a troubling border for the Court to cross. Also, as someone who has been lying about the size of his dick for twenty years, I'm deeply concerned about this possibility!

Now, the Obamacare ruling(s)! I'm not entirely surprised by the result -- the math always suggested to me that SOMEONE would join the four liberals in upholding the law. I'm not even that surprised it's the Chief Justice -- the Chief is generally tasked with maintaining the integrity and reputation of the Court and I believe Roberts may have been motivated by a desire to avoid further partisan splitting at One First. Kennedy was the Justice that sprang to mind for most people as a potential supporter, but his comments during oral arguments were as wild and violent as Scalia's (and his tendency, note Orwell above, to cast issues in extreme terms belies his weird reputation as a "moderate") and it seemed clear to me that he was out.

I've been saying since these lawsuits were filed that the individual mandate is a tax. It looks like a tax. It smells like a tax. It functions like a tax. It's a tax. Even the dissenters don't deny that Congress has the power to levy taxes on people who don't buy insurance. But the dissenters insist that because the statute calls the tax a "penalty" then it must be treated as such (despite emphasizing how the Court has in the past ruled that penalties that are called "taxes" by Congress should be treated as penalties). This seems to take strict construction a bit too far, in my mind. I still think it was foolish of Congress to refuse to admit the mandate amounted to a tax, but what they enacted is absolutely a tax and the Chief Justice rightly ruled so.

There remains the question of the Commerce Clause. Justice Ginsburg, writing for the liberals, would allow the mandate to stand as consonant with the Commerce Clause. I'm somewhat conflicted on this issue, although I think in the end I remain true to the Madam Justice. The dissenters (and the Chief Justice) rightly dismiss the idea that lack of commercial activity can be construed as commercial activity - when there is no activity (e.g. people are not buying health insurance) there can be no federal regulation. But they quite obtusely ignore (and seem intentionally to belittle) Ginsburg's actual argument. The Commerce Clause surely would not allow the government to command people to buy health insurance if the "commercial activity" in question were simply the health insurance market. But Ginsburg correctly views health insurance as part of a much larger market for health care -- a market in which anyone who will ever receive a prescription, visit a doctor, get a flu shot or be admitted to the hospital (i.e. everyone) participates. These people are participating in this market. Congress therefore has the right to regulate their participation through the mandate.

PS: Romney insists that his "replacement" for Obamacare would include a ban on the denial of coverage based on pre-existing conditions. The result of this would be disastrous without the individual mandate, which increases the number of premiums paid and thus keeps prices down. Romney, who believes Liberty means Dying In Your House, Covered In Your Own Shit Unless You're Totally Fucking Rich Like Me!, has just endorsed a policy that would REDUCE the number of insured in America. Thanks, Fuckchops!

PPS: Not to get all extremist on y'all, but please remember that a vote to repeal the ACA amounts to a vote to MURDER AMERICAN CITIZENS. Pro Life 4-Eva!

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